Wood v. United States ( 2022 )

In the United States Court of Federal Claims
)
II JOHN WOOD, )
)
Plaintiff, )
) No. 16-1383C
v. ) (Filed: May 5, 2022)
) NOT FOR PUBLICATION
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
)
Michael D.J. Eisenberg, Law Office of Michael D.J. Eisenberg, Washington, DC, for Plaintiff.
Michael D. Austin, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, Washington, DC, with whom were L. Misha Preheim, Assistant Director,
Patricia M. McCarthy, Director, and Brian M. Boynton, Acting Assistant Attorney General, for
Defendant.
OPINION AND ORDER
KAPLAN, Chief Judge
Few cases before this Court have been marred by as much inexcusable delay and as many
missed deadlines (followed by lame excuses) as this one. The dilatory course charted by
Plaintiff’s counsel, Michael D.J. Eisenberg, which culminated in a failure to respond to a show
cause order, led the Court eventually to dismiss the case. Now Plaintiff urges the Court to
reconsider. Plaintiff’s motion is DENIED.
BACKGROUND
The Court has twice ordered Plaintiff to show cause why his case, which challenges his
discharge from the United States Navy and his disability rating, should not be dismissed for
failure to prosecute and to comply with the Court’s orders. See June 28, 2021 Order (“2021
Show Cause Order”), ECF No. 73; Mar. 23, 2022 Order (“2022 Show Cause Order”), ECF No.
84. Those orders detail the procedural delays in this case. Rather than repeat that history in full
here, the Court summarizes below the events most pertinent to the present motion.
On March 23, 2022, the Court issued its most recent show cause order. See 2022 Show
Cause Order. The Order was prompted in large part by Plaintiff’s failure to comply with a
scheduling order under which Plaintiff was required to file a motion for judgment on the
administrative record (“MJAR”) by February 22, 2022. See Order (“Scheduling Order”), ECF
No. 81.
Although the February 22, 2022 deadline was one that both parties proposed the Court
adopt, see Joint Status Report, ECF No. 80, Plaintiff did not file his MJAR or any other
document on that date. Instead, some three weeks later, on March 15, 2022, Plaintiff moved for
an extension of time to file the MJAR. See Mot. for Extension of Time, ECF No. 83. In the
motion, Mr. Eisenberg claimed, vaguely, that the reason he had not filed either a timely MJAR or
motion for an enlargement of time was because he had “confused docket filings” and “erred in
his calendaring of this matter.” Id. at 1. Mr. Eisenberg proposed filing Plaintiff’s MJAR in five
weeks—nearly two months after the Court’s original deadline. Id. at 2; see also Scheduling
Order.
This was not the first time that Mr. Eisenberg made this mistake. He had made the same
one a year earlier when he failed for almost three weeks even to recognize that he had missed the
deadline for filing an earlier MJAR, see Order, ECF No. 65—a deadline which had already been
extended by four weeks at Plaintiff’s request, see ECF Nos. 60, 62–63—and blamed the
oversight on an error “in updating his calendar,” ECF No. 64. In that instance, Mr. Eisenberg
seemed entirely oblivious to the missed deadline until the Court contacted him to see whether he
intended to file his pleading. See Order at 1, ECF No. 65. The Court nonetheless gave Plaintiff
more time to file his MJAR, see id. at 2, but when he did so, it was not a finished product, see
generally Pl.’s MJAR, ECF No. 66. The Court allowed Mr. Eisenberg to file a completed MJAR
several days later. See ECF Nos. 67, 68.
The government subsequently filed its cross-MJAR, after also filing a motion for an
enlargement of time (albeit in a timely fashion, unlike Mr. Eisenberg). See ECF Nos. 69, 70, 72.
The Court, in granting-in-part the government’s request for more time, cautioned counsel for
both parties that it would not entertain further motions for enlargements of time, and it directed
Plaintiff to file his response brief no later than June 11, 2021. Order, ECF No. 70. Plaintiff again
missed his filing deadline. And, as before, Plaintiff appeared unaware that the deadline had
passed. The Court waited more than two weeks after Plaintiff’s response brief was due and,
hearing nothing from Plaintiff in that time, issued a show cause order on June 28, 2021. See 2021
Show Cause Order.
Mr. Eisenberg responded to the 2021 Show Cause Order the same day with a
two-paragraph “Initial Response,” in which he apologized for missing the filing deadline but
seemed to place some responsibility for the error on the government, the Court, and the Court’s
electronic filing system. See Initial Resp. to Order to Show Cause, ECF No. 74. Mr. Eisenberg
claimed that he was misled by the caption in the notice of electronic filing for the government’s
cross-MJAR. Id. at 1 n.1. The caption apparently stated that Plaintiff’s response brief was due
June 18, 2021, not June 11, 2021, as provided in the Court’s scheduling order. Id.; see ECF No.
74-2 (notice of electronic filing); Order, ECF No. 70 (directing Plaintiff to file his response brief
no later than June 11, 2021). But the erroneous due date did not supersede the Court’s scheduling
order and was corrected on June 8, 2021. At any rate, Plaintiff did not file his response brief on
June 18, 2021, or on any other date. Mr. Eisenberg also suggested that he was somehow unable
to file Plaintiff’s response brief because neither the government nor the Court had addressed
Plaintiff’s pending motion to supplement the administrative record. See Initial Resp. to Order to
2
Show Cause at 2. The Court found these explanations inadequate to justify Plaintiff’s delays. See
Order at 1–2, ECF No. 77.
Nonetheless, the Court decided not to dismiss Plaintiff’s case, a decision “born of respect
for [Plaintiff’s] service to the United States.” Id. at 2. Instead, it remanded the case to the Board
for Correction of Naval Records (“BCNR”) to consider the effect of a decision by the Court of
Appeals for Veterans Claims that the Court, rather than counsel, had found and identified as
relevant and potentially helpful to Plaintiff’s case. Id. at 2–3.
Following the BCNR’s decision on remand, ECF No. 79, the Court directed the
government to supplement the administrative record and the parties to file MJARs, see
Scheduling Order. As it had done throughout this case, the Court impressed upon the parties its
continued frustration with their delays, warning them “that no extensions of time shall be granted
absent extraordinary circumstances and that motions for extension filed after the due date of a
pleading will be denied.” Id. (emphasis added); see also, e.g., Order, ECF No. 58 (noting that
“counsel have requested numerous extensions of time, and have several times failed to meet the
Court’s filing deadlines”); Order at 1, ECF No. 63 (explaining that the Court “will not grant any
future requests for enlargement of the schedule . . . absent extraordinary circumstances”); Order,
ECF No. 65 (admonishing Mr. Eisenberg “that it is not the Court’s job to remind [him] that his
brief is overdue” and stating further that “Plaintiff’s failure to timely file his motion . . . shall
result in the issuance of an order to show cause why his complaint should not be dismissed for
failure to prosecute”); 2021 Show Cause Order at 2 (“[Mr. Eisenberg’s] continued failure to
comply with the Court’s deadlines and his disregard for the Court’s expressed concerns about . . .
the repeated delays in this case are inexcusable.”); Order at 2, ECF No. 77 (explaining that Mr.
Eisenberg “twice failed to timely file briefs and each time appeared not to realize the deadline
had passed . . . notwithstanding that this Court has regularly reminded counsel that it was
dissatisfied with the slow pace of this litigation”). The Court then awaited Plaintiff’s MJAR on
February 22, 2022. See Scheduling Order.
When Plaintiff moved for an extension of time on March 15, 2022, weeks after his filing
deadline, the Court, true to its word, denied it and directed Plaintiff to show cause by April 4,
2022, why his case should not be dismissed. See 2022 Show Cause Order. That deadline, too,
came and went without a response.
On April 5, 2022, the Court dismissed Plaintiff’s case with prejudice for failure to
prosecute and to comply with the Court’s orders, pursuant to Rule 41(b) of the Rules of the Court
of Federal Claims (“RCFC”). Order (“Order of Dismissal”), ECF No. 85. Later that day, Plaintiff
filed a notice in which Mr. Eisenberg claimed that he did not receive email notification of the
2022 Show Cause Order. Resp. to Court’s April 05, 2022, Order (“Pl.’s Initial Resp.”), ECF No.
87. He urged the Court, “as a matter of justice,” to permit him to respond to the Order and to
allow Plaintiff’s case to proceed. Id. at 2. On April 12, 2022, Mr. Eisenberg doubled down on
these assertions in a motion for relief from judgment under RCFC 60(b) and for reconsideration
under RCFC 59(a). See Mot. to Reconsider/Reopen Case, ECF No. 88 (“Pl.’s Mot.”).
On April 27, 2022, the Court held an oral argument on Plaintiff’s Motion, which the
Court will now deny for the reasons set forth below.
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DISCUSSION
I. Motion for Relief Under RCFC 60(b)
Plaintiff’s principal argument in support of his motion is that Mr. Eisenberg did not
receive notification that the 2022 Show Cause Order had been issued until after this case was
dismissed and that Plaintiff’s failure to respond to the Order was therefore excusable. See Pl.’s
Initial Resp. at 1; Pl.’s Mot. at 1–3, 7–8. Plaintiff further argues that the government would not
be prejudiced by allowing his case to proceed. Pl.’s Mot. at 6–8. The Court, however, is skeptical
of Mr. Eisenberg’s claim that he did not receive an email notification of the 2022 Show Cause
Order, and, in any event, it finds that he has provided no justification for the Court to reconsider
its Order of Dismissal.
RCFC 60(b) states that a court “may relieve a party . . . from a final judgment, order, or
proceeding” for any of several reasons, including: “(1) mistake, inadvertence, surprise, or
excusable neglect; . . . or (6) any other reason that justifies relief.” Plaintiff seeks relief under
both RCFC 60(b)(1) and (6). See Pl.’s Mot. at 1–2, 6.
As an initial matter, the Court notes that RCFC 60(b)(1) and 60(b)(6) are “mutually
exclusive.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993).1
It is well established, therefore, that a party cannot obtain relief under RCFC 60(b)(6) when its
motion implicates other clauses of RCFC 60(b). See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 (1988) (explaining that relief under Federal Rule of Civil Procedure
60(b)(6) is unavailable when the motion is “premised on one of the grounds for relief
enumerated in clauses (b)(1) through (b)(5)”). Because Plaintiff seeks relief under RCFC
60(b)(1) based on Mr. Eisenberg’s mistakes and neglect in prosecuting Plaintiff’s case, see Pl.’s
Mot. at 1–2, 6, Plaintiff cannot obtain relief under RCFC 60(b)(6) for the same errors, see
Liljeberg, 486 U.S. at 863; Brewer v. United States, No. 19-284T, 2021 WL 2368156, at *4
(Fed. Cl. June 9, 2021) (explaining that parties are “unable to obtain relief from judgment
premised on inadvertence and neglect under both RCFC 60(b)(1) and 60(b)(6)”).
Under RCFC 60(b)(1), courts balance four factors in deciding whether a party’s neglect
was “excusable”: “[1] the danger of prejudice to the [non-movant], [2] the length of the delay
and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it
was within the reasonable control of the movant, and [4] whether the movant acted in good
faith.” Moczek v. Sec’y of Health & Hum. Servs., 776 F. App’x 671, 673–74 (Fed. Cir. 2019)
(alterations in original) (quoting Pioneer Inv., 507 U.S. at 395). “[A]t bottom,” the determination
of whether neglect is excusable is “an equitable one, taking account of all relevant circumstances
surrounding the party’s omission.” Pioneer Inv., 507 U.S. at 395.
1
RCFC 60(b) mirrors Federal Rule of Civil Procedure 60(b), and the Court therefore relies on
cases interpreting Federal Rule of Civil Procedure 60(b) in applying RCFC 60(b). Cf. Haggart v.
United States, 89 Fed. Cl. 523, 529 (2009) (citing King v. United States, 84 Fed. Cl. 120, 122 n.2
(2008)).
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As noted above, Mr. Eisenberg contends that he never received the 2022 Show Cause
Order and that Plaintiff’s failure to respond to it by the April 4, 2022 deadline was therefore
excusable. See Pl.’s Initial Resp. at 1; Pl.’s Mot. at 1–3, 7–8. The Court finds this explanation
implausible. The Court of Federal Claims’ electronic filing system recognizes when a notice is
successfully transmitted to a party—as it did on March 23, 2022, at 11:14 a.m., when notice of
the Court’s filing of the 2022 Show Cause Order was successfully delivered to Mr. Eisenberg’s
email address. Mr. Eisenberg apparently received every other electronic notice in this case
(including the Court’s order dismissing it), Oral Arg. at 8:45–9:24, and has a history of failing to
comply with Court-ordered deadlines, see, e.g., ECF Nos. 64, 73, 83.
Further, even accepting as true Mr. Eisenberg’s claim that he did not receive email
notification, Plaintiff’s failure to respond to 2022 Show Cause Order remains inexcusable.
Counsel has an obligation to monitor the docket. See Moczek, 776 F. App’x at 674 n.3
(explaining that counsel who failed to respond to the court’s orders “had an obligation to monitor
the docket,” “[e]ven if counsel did not receive email notification of the orders”); cf. Lutsenko v.
Pshnka, 282 F.R.D. 5, 7–8 (D.D.C. 2012) (denying relief under Federal Rule of Civil Procedure
60(b)(1) and explaining that counsel was obligated to monitor the docket and respond to the
court’s filing deadlines even though he “never personally registered to receive notice” from the
court’s electronic filing system). Mr. Eisenberg’s failure to do so was especially egregious here,
where the Court had advertised its frustration with the parties’ delays and warned counsel in
plain terms that it would deny “motions for extension filed after the due date of a pleading.” See,
e.g., Scheduling Order. Notwithstanding that warning, Plaintiff filed a motion for an enlargement
of time three weeks after his MJAR was due. See id.; ECF No. 83. And then he never bothered to
check the docket to see if an extension had been granted, or for how long. Mr. Eisenberg had to
have known that his motion would not be well received. If Mr. Eisenberg had checked the
docket, he would have seen that the Court denied the motion on March 23, 2022, and granted
Plaintiff nearly two weeks to show cause why his case should not be dismissed. See 2022 Show
Cause Order.
More important still is Plaintiff’s failure to file his MJAR by the February 22, 2022
deadline. It was this violation that finally prompted the Court to issue the 2022 Show Cause
Order, yet Mr. Eisenberg has not provided a reason for this delay except to state in Plaintiff’s
March 15, 2022 motion for an enlargement of time that he “erred in his calendaring of this
matter” and “confused docket filings”: “he thought incorrectly a subsequent Order was still
necessary to confirm the dates – confusing [ECF No.] 81 as a proposed Order combined with
Defendant’s filing of [ECF No.] 82.” See Mot. for Extension of Time at 1, ECF No. 83. Mr.
Eisenberg elaborated on this explanation in a “Statement of Compliance” that he attached to
Plaintiff’s Motion, in which he claimed that he was confused about the Scheduling Order
because of a combination of “the New Year, family medical issues, travel for said family,
COVID, and [his] work.” See Statement of Compliance at 1, ECF No. 88-2.
As the Court explained previously, Mr. Eisenberg’s justification is insufficient to warrant
relief. See 2022 Show Cause Order. Mr. Eisenberg may have been distracted from his
obligations at the time the Court issued its scheduling order, but that does not explain why he
thought the order was not controlling or why he did not at least add the February 22, 2022 filing
deadline to his calendar. See Scheduling Order.
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Mr. Eisenberg has well over a decade of experience representing veterans in cases like
this one. See Statement of Compliance at 1. Moreover, he writes and presents on lawyers’
effective use of technology, including, among many topics, the risks of relying on electronic
calendars and other technology to meet filing deadlines. See Michael D.J. Eisenberg, Monday,
MTC – To Error Is Human, Technology Is Not Devine!, The Tech Savvy Lawyer (Apr. 18,
2022), https://www.thetechsavvylawyer.page/blog/2022/4/18/monday-mtc-your-tech-is-only-as-
good-as-the-information-you-put-into-itdont-miss-deadlines-because-of-human-error. The Court
therefore has no reason to conclude that Plaintiff would have offered good cause not to dismiss
his case, even if he had responded in time to the 2022 Show Cause Order.
Plaintiff also argues that the government will not be prejudiced if the Court grants relief
under RCFC 60(b)(1), Pl.’s Mot. at 6–7, and notes that “the case has been briefed,” Pl.’s Initial
Resp. at 2. The Court disagrees. To be sure, Plaintiff has filed MJARs before in this case, albeit
after seeking numerous extensions of time and ignoring a filing deadline, see ECF Nos. 32–37,
60, 62–68, and Plaintiff filed his most recent MJAR seven weeks overdue with the present
motion, see Pl.’s Am. MJAR, ECF No. 88-3. But the parties have never advanced beyond the
first round of briefing, and the Court has no confidence that, were the case to be reopened, Mr.
Eisenberg would file Plaintiff’s response brief on time. At the same time, the government would
have to expend time and resources preparing a cross-MJAR and, eventually, perhaps, replying to
Plaintiff’s response brief.
Ultimately, the Court places significant weight on the fact that Mr. Eisenberg has been
unable to justify—or even adequately explain—Plaintiff’s repeated delays in this case. See
Moczek, 776 F. App’x at 674 (explaining that a party’s inability to offer “good reasons for [its]
delay . . . has often been held to be fatal to Rule 60(b) relief” (citing 11 Charles Alan Wright,
Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 2858 (3d ed. 2010 & Supp.
2019))). The Court concludes that Plaintiff’s repeated failures to comply with the deadlines in
this case resulted from Mr. Eisenberg’s lack of care and are inexcusable.
II. Motion for Reconsideration Under RCFC 59(a)
Plaintiff also argues that the Court’s decision to dismiss his case was manifestly unjust
because it punishes him for Mr. Eisenberg’s failure to respond to the 2022 Show Cause Order
and because “there is a high likelihood of [him] prevailing” on the merits. Pl.’s Mot. at 3; see
also Pl.’s Initial Resp. at 2 (urging the Court, “as a matter of justice,” to “allow this case to
proceed on the merits”). These arguments are unavailing.
Whether to grant a motion for reconsideration under RCFC 59(a) lies within the sound
discretion of the court. Yuba Nat. Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.
1990). The moving party must make “a showing of extraordinary circumstances which justify
relief.” Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting Caldwell v. United
States, 391 F.3d 1226, 1235 (Fed. Cir. 2004)). To meet this high standard, the moving party
typically “must show either that an intervening change in controlling law has occurred, evidence
not previously available has become available, or that [granting] the motion is necessary to
prevent manifest injustice.” CBS Corp. v. United States, 75 Fed. Cl. 498, 501 (2007) (quoting
Bishop v. United States, 26 Cl. Ct. 281, 286 (1992)). “Where a party seeks reconsideration on the
6
ground of manifest injustice, it cannot prevail unless it demonstrates that any injustice is
‘apparent to the point of being almost indisputable.’” Griffin v. United States, 96 Fed. Cl. 1, 7
(2010) (quoting Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (2006), rev’d on
other grounds, 536 F.3d 1282 (Fed. Cir. 2008)).
Plaintiff does not identify either a change in law or previously unavailable evidence that
would justify granting his motion. See generally Pl.’s Initial Resp; Pl.’s Mot. Plaintiff instead
contends that the Court’s Order of Dismissal was manifestly unjust in part because Mr.
Eisenberg never received notice of the 2022 Show Cause Order and therefore did not know that
the Court expected a response. See Pl.’s Mot. at 1–3, 7–8. This argument fails for the reasons the
Court provided above—namely, that even if the Court credited Mr. Eisenberg’s implausible
claim that he never received email notification of the 2022 Show Cause Order, Mr. Eisenberg
had an obligation to monitor the docket, especially after Plaintiff moved for an enlargement of
time well beyond the filing deadline.
The Court is not unsympathetic to Plaintiff, which is why it has forgiven Mr. Eisenberg’s
repeated errors until now. See, e.g., Order at 2, ECF No. 77. But “the client is normally
responsible for the malfeasance of the attorney.” Sneed v. McDonald, 819 F.3d 1347, 1351 (Fed.
Cir. 2016) (citing Maples v. Thomas, 565 U.S. 266, 280–81 (2012)); see also Pioneer Inv., 507
U.S. at 396 (explaining that, in many instances, “clients must be held accountable for the acts
and omissions of their attorneys”); Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962) (finding
“no merit to the contention that dismissal of petitioner’s claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the client”). And for good reason: failing to
prosecute a case or to comply with a court’s orders will frequently be the fault of a party’s
attorney, but if the consequences of these errors were rarely visited upon the party, it would have
little incentive to police its attorney’s conduct, and the court would have little recourse for
ensuring finality among cases beset by inexcusable delay. See Marotte v. United States, No.
531-79, 1997 WL 881208, at *47 (Fed. Cl. Sept. 30, 1997) (“If the lawyer’s neglect protected the
client from ill consequences, neglect would become all too common.” (quoting Tolliver v.
Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986))).
Moreover, Plaintiff does not argue that he “relied on the erroneous advice of counsel
concerning a question of law.” See United States v. Boyle, 469 U.S. 241, 250 (1985). If that were
the case, the Court might not impute Mr. Eisenberg’s mistakes to his client. See id. Here,
however, Mr. Eisenberg erred by repeatedly losing track of express deadlines. See, e.g., 2021
Show Cause Order; 2022 Show Cause Order. These errors were readily discoverable. Indeed,
Mr. Eisenberg states that he shared the Court’s show cause orders with Plaintiff, see Statement of
Compliance at 1; Pl.’s Initial Resp. at 1, and emphasized at the oral argument that he had kept
Plaintiff apprised continuously of all developments in this case, Oral Arg. at 32:49–33:27,
34:04–34:15. Therefore, and regrettably, Plaintiff must bear the costs of Mr. Eisenberg’s
inexcusable neglect. See Boyle, 469 U.S. at 251–52; Link, 370 U.S. at 633–34.
Finally, Plaintiff has not demonstrated that the merits of his case are so strong that
dismissing it was manifestly unjust. See Pl.’s Mot. at 3–5. The Court has remanded this case to
the BCNR three times, see ECF Nos. 7, 43, 77, and each time the BCNR denied Plaintiff relief,
see ECF Nos. 22, 53, 79–80. In addition, the government has previously filed a reasoned
cross-MJAR, see ECF No. 72, and would presumably do so again. The Court cannot say,
7
therefore, that its Order of Dismissal denied Plaintiff an obvious or “almost indisputable” right to
relief from the BCNR’s decisions. See Griffin, 96 Fed. Cl. at 7. Nor does the Court find relevant
Plaintiff’s argument that resolving a case “on the merits is favored over default judgment.” See
Gov’t Servs. Corp. v. United States, 130 Fed. Cl. 795, 798 (2017) (quoting Info. Sys. &
Networks Corp. v. United States, 994 F.2d 792, 795 (Fed. Cir. 1993)); see also Pl.’s Mot. at 7
(quoting Info. Sys. & Networks Corp., 994 F.2d at 795). Plaintiff was not served with a
counterclaim and is not faced with a default judgment. Rather, Mr. Eisenberg failed to prosecute
Plaintiff’s affirmative case.
In sum, Plaintiff has not shown exceptional or extraordinary circumstances justifying
relief under RCFC 59(a). To the extent that Plaintiff also seeks relief under RCFC 60(b)(6) based
on the arguments he made in his RCFC 59(a) motion, see Pl.’s Mot. at 1–2, the Court will deny
relief for the reasons it has already provided. Like RCFC 59(a), RCFC 60(b)(6) “is an avenue to
secure ‘extraordinary relief . . . which may be granted only in exceptional circumstances.’”
Wagstaff v. United States, 595 F. App’x 975, 978 (Fed. Cir. 2014) (quoting Sioux Tribe of
Indians v. United States, 14 Cl. Ct. 94, 101 (1987)); see also Dean v. United States, 17 Cl. Ct.
852, 854 (1989) (providing that a movant must point to “rare, unusual, or extraordinary
circumstances which would justify relief” from judgment under RCFC 60(b)(6)). To find that
Plaintiff identified exceptional or extraordinary circumstances entitling him to relief under RCFC
60(b)(6) but not RCFC 59(a) “would be nonsensical.” See Young v. United States, 94 Fed. Cl.
671, 676 (2010).
CONCLUSION
Plaintiff has not demonstrated that Mr. Eisenberg’s persistent failure to meet the Court’s
filing deadlines—including his most recent failure to respond to the 2022 Show Cause Order—
was the result of excusable neglect. Nor has Plaintiff shown that the Court must reopen this case
to prevent manifest injustice. Accordingly, Plaintiff’s motion for relief from judgment and for
reconsideration, ECF No. 88, is DENIED.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
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